STATE OF NEW JERSEY v. AMIR YANCEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMIR YANCEY,

Defendant-Appellant.

_________________________________________________

Submitted June 18, 2013 Decided

Before Judges Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indict-

ment No. 05-06-0975.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was charged in 2005 with four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), as well as one count each of criminal restraint, N.J.S.A. 2C:13-2, making terroristic threats, N.J.S.A. 2C:12-3(a), and criminal trespass,

N.J.S.A. 2C:18-3(b). Defendant entered into a plea agreement in November 2005, agreeing to plead guilty to one count of second-degree sexual assault; the State agreed to dismiss the remaining counts and to recommend a maximum sentence of five years in prison, subject to an 85% period of parole ineligibility. At that time, defendant also signed forms outlining, among the many other consequences of his guilty plea, the possibility in the future of civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

Defendant entered a guilty plea pursuant to the terms of the plea agreement on February 27, 2006. At that time, the judge went to great lengths in responding to defendant's questions to explain some of the consequences of the guilty plea; we quote from this proceeding at some length in light of the issues raised in this appeal:

THE COURT: And finally you understand that there will be an exam done in your case by Avenel, the -- to determine whether or not you are repetitive and compulsive and amenable to treatment. Do you understand that?

MR. YANCEY: Yes.

THE COURT: And depending on the outcome of that examination you'll be sentenced accordingly. Do you under --

MR. YANCEY: What do you mean I'll be sentenced accordingly depending on the outcome of that situation?

THE COURT: If you are found sexually compulsive and repetitive and amenable to treatment, then I sentence you to the adult diagnostic center which we commonly call Avenel pursuant to statute where they give you sexual offender treatment. If you are not so found --

MR. YANCEY: Does this sentencing -- I just want to know one thing. Does this sentencing exceed or in any way during [sic] the five years that I'm pleading guilty to?

THE COURT: No.

MR. YANCEY: So like let's say if I do the five years they decide for some reason that they ain't pleased with my mental behavior, whatever the situation may be, they can't keep me longer can they?

THE COURT: Well the answer to that is no. However -- however there is another -- well you want to know everything, don't you?

MR. YANCEY: Yeah.

THE COURT: Okay. There is another provision of our statutes that applies to this crime. The --

[DEFENSE COUNSEL]: Sexually violent predator act.

THE COURT: -- sexually violent predator act applies to this crime. Sexually violent predator act, if that should apply to you, if the state at the end of before you are released on parole, if the state sought to apply that provision to you, there would be a hearing in which it would determine whether or not that provision applied to you and if it did apply to you and a judge so decided in a separate hearing, then you

could be committed for treatment after your five years were up. Do you understand that?

[DEFENSE COUNSEL]: There's one other thing that I'm not sure Mr. Yancey understands --

MR. YANCEY: I understand everything.

[DEFENSE COUNSEL]: -- but when you said amenable to treatment at Avenel, the Avenel statute makes clear that a person who is going to be sentenced has to agree to be treated at Avenel, otherwise Avenel will not accept him.

THE COURT: That's correct.

MR. YANCEY: Right so if I disagree upon treatment, I mean would that --

[DEFENSE COUNSEL]: Then you just go to state prison.

MR. YANCEY: Alright.

[Emphasis added]

Defendant was sentenced on February 16, 2007, in accordance with the plea agreement, to a five-year prison term, with an eighty-five percent period of parole ineligibility.

Defendant filed a post-conviction relief (PCR) petition in 2010, arguing, among other things, that he was not adequately informed that commitment pursuant to the SVPA was a consequence of his guilty plea. Without conducting an evidentiary hearing, the PCR judge rendered an oral decision, which was later amplified by a written decision, denying the PCR petition.

Defendant appeals, arguing:

I. THE FAILURE OF TRIAL COUNSEL AND THE PLEA COURT TO EXPLAIN TO DEFENDANT THAT THE POSSIBILITY OF CIVIL COMMITMENT MEANT HE COULD BE DEPRIVED OF HIS LIBERTY BEYOND THE TERM OF HIS PLEA AGREEMENT, FOR AN INDEFINITE PERIOD OF TIME, AND EVEN THE REST OF HIS LIFE, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

II. THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THAT DEFENDANT COULD BE COMMITTED FOR A PERIOD LONGER THAN THE SENTENCE DEFENDANT BARGAINED FOR, FOR AN INDEFINITE PERIOD OF TIME, AND EVEN FOR LIFE, RESULTED IN AN UNKNOWING WAIVER OF DEFENDANT'S RIGHT TO A JURY TRIAL, RENDERING HIS PLEA DEFECTIVE AND DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL (Partially Raised Below).

III. THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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